The Pattern Choice Of Identifying The Public Interest In Real Estate Expropriation

The real estate expropriation should take the public interest as the premise,which is the current consensus in various countries in the real estate expropriation system .Before issuing "Property Law",other relevant laws do not have the identification of public interest request in the real estate expropriation aspect in our country,however,now "Property Law" stipulates explicitly in 42th first section,that is the real estate expropriation must be based on the public interest needs. This article has provided the civil law basis for real estate expropriation system in our country .In practice,as a result of not sufficiently understanding the public interest and especially not having laws to rule it,that has initiated many social problems. The identification of the public interest is real a problem in front of us. We can prevent undue detriment and limiting private rights by identifying the public interest. This article then mainly take the identification of the public interest as a goal to inquire the pattern choice of identifying the public interest in real estate expropriation,there are four parts:First part,the analysis of establishment public interest goal in the real estate expropriation . Firstly,the reason that the real estate becomes the collection object not only lies in the real estate special scarcity and the special legal nature,also lies in the modern society to intensify the land resource use;secondly,the article states that the real estate expropriation is based on the national power and justify how the country power making the real estate behavior exercise normally;Finally,the article analyzes the legislation foundation of the real estate expropriation. If the national collection power resolves the real estate expropriation jurisdiction problem,then the needs of the public interest resolves the real estate expropriation legal basis.The second part,the article inspects the research situation of the overseas academic circles to the public interest,then discusses this kind of research in the role of identifying and implementing the public interest . In a word,the overseas academic circles have two kinds standpoint about the public interest,namely affirmation public interest and denial public interest .Domestic scholars affirm the former,but detail including the theory of special benefit,the non-commercial interest, the overall benefit and so on .In the foundation of these different standpoints,the article proposes the public interest should be the benefit of the institution,that is,everybody can realistically feel and understand the actual benefits.The third part,the article states two kinds legislation pattern of the institution public interest,namely US's summary -like legislation pattern and Japan enumerate the type pattern .The public interest has not explicitly scope and type of the real estate expropriation in the legislation of USA, but the legislation only summarizes that the expropriation is based on the needs of the public interest adopts one summary -like way ;The legislation has enumerated 35 types of the public interest in Japan .The article separately analyzes these two kinds of legislation pattern,then investigates the revelation for identifying the public interest in our country.The fourth part,the article states how to complete the public interest legislation pattern in our country,analyzes the deficiency of the existing summary -like legislation pattern,namely the public interest is exuded and empty sets,and then probes how to complete the pattern of the public interest in the perspective of the institution public interest .Firstly,the article probes the body and the way to identify the public interest,advocates the way by the legislature to judge;Next,stating the principle of identifying the public interest,namely the public interest content must have operational,benefit sharing and be realized by the just procedure;Finally,proposing how to limit the content and the scope of the public interest .